Below are excerpts from two opposing viewpoints.

Counterpoint

Point

West Bank Is Under
'Military Occupation'

Jerusalem/JTA

A

ccording to press reports, the
crowd at a recent Republican
Jewish Coalition conference
"noticeably gasped" when New Jersey
Gov. Chris Christie referred to the West
Bank as "occupied territories:' Christie
promptly apologized to the event's host,
mega-donor Sheldon Adelson, clarify-
ing that his remarks "were not meant to
be a statement of policy" according to a
source.
This incident illustrates the many
semantic land mines involved
in talking about the Israeli-
Palestinian conflict. The
terms employed to talk about
the separation barrier or the
Israeli settlements or some of
Jerusalem's holy sites often belie
a political agenda intended not
only to describe reality, but also
to affect it.
Yet this incident also illus-
trates the way in which an
inherently legal term has been
branded as somehow part of a
radical political agenda.
Acknowledging that the West Bank is
presently subject to military occupation
is not at all a statement of policy. It is a
statement of fact.
Many Jews, both in Israel and in the
United States, use the biblical names
Judea and Samaria, highlighting the
belief that this territory forms the foun-
dation of the Jewish people. This territo-
ry is indeed the biblical heartland of the
Jewish tradition, where, according to our
Bible, the Patriarch Abraham purchased
a plot of land for his family, where Joshua
brought the people after 40 years of wan-
dering in the desert and built the taber-
nacle to house the Ark of the Covenant.

Military Justice

But calling this area Judea and Samaria
tells us nothing about the applicable
legal framework: Who is the legislator in
Judea and Samaria? Who is the executive
branch of government in the West Bank?
Mat is the judiciary there?
The answer to all three questions is the
Israeli military. The military passes laws
in the form of military orders that super-
sede the local laws that otherwise remain
in force. Even the fact that Israeli law
applies in the settlements, and personally
to settlers, is not due to legislation from
the Knesset but because the military
commander signed an order giving force
to that particular piece of Knesset legisla-
tion.

'Occupied Territories' Is
A Flawed, Biased Term

The military is also the executive,
Jerusalem/JTA
administering all aspects of the gov-
ernance of this territory. Many of the
hen New Jersey Gov.
Israeli civil authorities operate in the
Chris Christie apologized
settlements; the Palestinian Authority
to Republican donor
has responsibility for civil affairs within
Sheldon Adelson for using the term
Palestinian cities. However, all of these
"occupied territories" to refer to the
authorities operate within the
West Bank, critics pounced.
overall control of the Israeli
Jon Stewart of The Daily
At Iss ue:
military.
Show ridiculed the apology,
And the military is the judi-
insisting that the phrase
ciary. The military legal advisers
Is Israel i !legally is "widely accepted" and
decide what is lawful and what
"occupy' ng" the accurate.
is not. The Israeli military main-
While the term is indeed
West Ban k?
tains a military
widely used to describe
court system in
Israel's relation-
which Palestinians
ship to the West
are tried for everything
Bank areas of Judea and
from security offenses to
Samaria, that doesn't make
traffic violations.
it accurate. Indeed, the use
of the term "occupied ter-
Wide Authority
ritories" in this context is
All Palestinians — including
flawed legally, historically
those living in Area A under
and factually.
the nominal control of the
The phrase does not
Palestinian Authority — are
accurately reflect the status
subject to the jurisdic-
of the areas that it pur-
tion of the Israeli military.
ports to describe. Yet it has
Some 300,000 Israelis live
regrettably become lingua
franca in contemporary international
in this territory as well (not counting the
200,000 Israelis in the territory annexed
and U.N. parlance, including for senior
to the city of Jerusalem). Though they
members of the U.S. administration
also live in territory governed by military
and European leaders.
law, settlers enjoy all the rights of the
The expressions "occupied territory"
Israeli democracy as well as additional
and "occupied Palestinian territory"
financial benefits intended to encourage
are political terms frequently used in
nonbinding political resolutions, prin-
Israelis to live there. The result is that
two different and discriminatory legal
cipally in the U.N. General Assembly,
representing nothing more than the
systems operate in the same territory,
with a person's rights and benefits deter-
political viewpoint of the majority of
mined by his or her national origin.
states voting in favor of such resolu-
The words "military occupation" might
tions.
sound harsh to the American ear. Many
These political pronouncements
Israelis don't like the sound of it either.
have never constituted, nor should
Yet the reality is indeed harsh. Millions
they constitute, an authority for any
of Palestinians have lived for almost half
determination that the territories are
a century under military rule, denied
Palestinian or that they are occupied.
basic rights and subject to the whims of
Such determinations would appear
a government they did not elect and have
to be based on incorrect and partisan
no ability to influence.
readings of the factual situation and of
Adelson and his ilk may be able to dic-
the relevant international legal docu-
tate a form of censorship of the political
mentation.
conversation in the United States. This
ostrich-like behavior, however, does not
The Backdrop
alter the reality on the ground. This is
In the 1967 Six-Day War, Israel took
a rotten system. U.S. Secretary of State
control of Samaria, Judea, eastern
John Kerry is currently devoting massive
Jerusalem and the Gaza Strip. These
efforts to address this problem. If his
areas had previously been seized by
the Hashemite Kingdom of Jordan and
efforts are to have any hope of success,
we must first of all call it like it is.
Egypt and held by them since the 1948
war, initiated by them against Israel.
Jessica Montell is executive director of
International law relates to occupa-
B'Tselem: The Israeli Information Center for
tion of foreign territory from a "prior
Human Rights in the Occupied Territories.
legitimate sovereign" and these areas

W

❑

never constituted the legitimate sov-
ereign territory of Jordan or Egypt.
Hence, the accepted international law
definition of "occupation" of territory
cannot be attributed to Israel's status
in these areas.
The unique historic and legal nature
of these territories, in which there
has existed a basic indigenous Jewish
presence since at least 1500 BCE,
long before the arrival of Islam in the
Seventh Century CE, with concomi-
tant Jewish historic rights, inevitably
renders these territories as sui generis,
or having a unique legal status. This
status runs counter to any
attempt to use standard defi-
nitions such as "occupied
territories" in order to desig-
nate or describe these areas.
Furthermore, the historic
and legal rights of the Jewish
people to this territory,
rendering it unique and
not "occupied" have been
acknowledged and encapsu-
lated legally and historically
in official, binding and still
valid international docu-
ments: the 1917 Balfour Declaration,
the 1920 San Remo Declaration, the
1922 League of Nations Mandate
Instrument and the 1945 U.N. Charter.

Under Dispute

By any objective criteria, the status of
the territory could therefore only be
considered to be at the most "disputed
territory" subject to an agreed-upon
negotiation process between Israel and
the Palestinians aimed at determin-
ing its ultimate status by agreement.
This negotiating process includes the
requirement to agree on secure and
recognized permanent boundaries.
Demands that Israel withdraw to the
"1967 lines" which are, in effect, the
1949 armistice demarcation lines, are
equally flawed and misleading. Such
demands attempt to prejudge an open
negotiating issue.
Efforts by leading elements in the
international community to assign the
territory to the Palestinians, prior to a
successful conclusion of the negotiating
process, or to deny the rights and sta-
tus of Israel, demonstrate nothing more
than political ignorance and bias.

❑

Alan Baker is director of the Institute for

Contemporary Affairs at the Jerusalem

Center for Public Affairs. He also leads the

International Action Division of the Legal

Forum for Israel.

May 1 • 2014

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